Friday, April 17, 2009

Lawyers ask judge to split sweeping grazing suit

The federal government is asking a judge to break apart a sweeping lawsuit that accuses federal land managers of putting grazing and energy interests ahead of preserving sage grouse across millions of acres of public land in six western states.

The lawsuit, filed last year in U.S. District Court here, challenges 16 separate land use plans developed by the Bureau of Land Management to manage 25 million acres in Montana, Idaho, Nevada, Utah, Wyoming and northern California.

The Idaho-based Western Watersheds Project contends the BLM violated federal environmental laws, as well as its own policies, in writing those plans. In its lawsuit, the group accuses the agency of failing to fully consider the impacts livestock grazing, oil and gas drilling and other activities would have on the sage grouse and its diminishing habitat.

Thursday's hearing before U.S. District Judge B. Lynn Winmill focused on procedure instead of the legal merits of the case.

According to government lawyers, the case right now is too broad to address the distinct differences and nuances of the agency's 16 management plans.

Assistant U.S. Attorney Deborah Ferguson, representing the BLM, wants Winmill to split case so it can be argued separately in federal courthouses in each of the six states. Keeping the case in Boise and wrapped in one, all-encompassing legal challenge ignores the unique nature of each 20-year management plan and the local involvement that went into crafting them, she said.

"It's not a case of if you've seen one, you've seen them all," Ferguson told the judge.

The Wyoming Stock Growers Association and the Petroleum Association of Wyoming have joined the government's attempt to split and dismiss the case.

Laird Lucas, a lawyer for Western Watersheds, said the case should remain consolidated because it's based on the same common legal thread: In developing each of the 16 management plans, BLM decision makers neglected to consider a no-grazing option as a way to protect and enhance sage grouse habitat.

As a result, Lucas said, the agency violated the National Environmental Policy Act and its own sage grouse management plan developed in 2004 to avoid having the bird listed under the Endangered Species Act.

"All these plans have the same defects," Lucas said. "It makes no sense to break these into six different cases."

Winmill said he intends to rule quickly, but did not indicate when.

In recent years, Western Watersheds has delivered several legal blows to the federal government's management of sage grouse, a chicken-sized bird that once proliferated in the sagebrush plains and high desert ecosystems from Colorado to northeastern California and into southern Canada.

Government scientists say as many as 16 million sage grouse lived in western states in the early 1800s, but its numbers have dwindled to about 100,000, according to a 2005 estimate.

Conservationists and biologists attribute the drop to rapid declines in sagebrush habitat from urban development, energy development, wildfires, invasive weed growth, global warming and livestock grazing.

Despite an appeal by conservationists, the U.S. Fish and Wildlife Service determined the bird didn't deserve to be listed as a threatened or endangered species in 2005. Western Watersheds responded with a lawsuit challenging that decision, and in 2007 Winmill sided with the organization.

In his ruling, Winmill concluded the decision by the wildlife service ignored key science and was tainted by political meddling by Bush administration appointees. The wildlife service was ordered to revisit the listing decision and is expected to issue a new decision later this year.

Tuesday, April 14, 2009

Suit says grazing, drilling rules threaten bird

Conservationists say federal rules that allow livestock grazing and oil and gas development across 25 million acres of public land in the West are illegal because they fail to acknowledge the harm being done to sage grouse.

A lawsuit recently filed in federal court accuses the Bureau of Land Management of violating two major environmental laws and its own regulations by allowing commercial activities to continue on those lands in California, Nevada, Idaho, Montana, Wyoming and Utah.

But in a switch in strategy, the environmentalists aren't asking a judge to immediately halt those operations. They want to talk, and they think they may have a willing listener in the new Obama administration.

"What we are after is finding a way to do things differently than in the past and better manage these public lands into the future," said Laird Lucas, a lawyer for the Western Watersheds Project, which filed the suit.

Since taking office, President Obama has distanced himself from several Bush administration policies on the environment and suspended some administrative orders Bush signed in the waning days of his term that could lead to the easing of protections for threatened wildlife on federal land.

The change in administrations prompted the new approach from the Idaho-based environmental group that has spent much of the past eight years in court battling land-use rules adopted by the BLM and Forest Service.

Kendra Barkoff, press secretary for Interior Secretary Ken Salazar, said Friday "we are in the preliminary stages of litigation and as a result can't comment."

Ranchers and drillers said the suit is part of an effort to keep livestock, energy development and other commercial activities off an area of the West bigger than the state of Indiana.

"They are trying to tie up 25 million acres and close it down to livestock operators altogether," said Ronald Opsahl, a lawyer for the Mountain States Legal Foundation, which represents the Wyoming Stock Growers Association and the Petroleum Association of Wyoming. "As far as the scope of this case, it has to be unprecedented."

The focus of the lawsuit is a chicken-size game bird - mottled brown, black and white - found on sagebrush plains and high desert from Colorado to California and into southern Canada. The government estimates as many as 16 million sage grouse inhabited the West in the early 1800s when they were first observed by Lewis and Clark. Today their numbers have dwindled to as low as 100,000, according to a U.S. Fish and Wildlife Service census in 2005.

At issue in the lawsuit is the BLM's National Sage Grouse Habitat Conservation Strategy. The agency adopted it in 2004 as an interim plan to help protect the bird and guide management of federal rangeland while the Fish and Wildlife Service considered whether to protect the sage grouse under the Endangered Species Act.

The wildlife service determined in 2005 not to list the sage grouse as an endangered or threatened species, but a federal judge overturned the decision. The agency is expected to deliver a new decision on whether to protect the bird this year.

Sunday, April 5, 2009

Feds agree to look at jaguar's capture

The U.S. Fish and Wildlife Service will open a criminal investigation into the circumstances surrounding the capture and euthanization of the jaguar Macho B, service officials said Thursday.

The federal agency, legally responsible for protecting endangered species such as the jaguar, said it would look into "all aspects of the incident" involving Macho B's capture and death. It said the decision to investigate — previously sought by a congressman and two environmental groups — was based on "new information received in the last 48 hours that called into question the circumstances of the initial capture."

The announcement came after the Arizona Daily Star published an article raising the possibility that the Feb. 18 capture of Macho B was deliberate and not accidental, as State Game and Fish officials had said. In an interview, Janay Brun, a field technician for a non-profit jaguar research group, said she was told on Feb. 4 by a biologist for the group, Emil McCain, to place female jaguar scat at the snare trap site where Macho B was later captured. McCain has denied Brun's allegation.

A service spokesman said "I can't say that it is one specific thing" that triggered the investigation.

"It is the circumstances around the trapping of the jaguar in general," said spokesman Jose Viramontes in Albuquerque.

The federal investigation had been sought by U.S. Rep. Raul Grijalva, of Tucson, and environmental groups the Center for Biological Diversity and the Defenders of Wildlife. The center and Grijalva said that they didn't want the Game and Fish Department to investigate itself.

In a letter to the service this week, Grijalva asked for a probe into:

• Whether the capture was legal, and whether it was intentional or unintentional.
• The status of state and scientist guidelines for capturing and handling jaguars, and how Game and Fish and the contractors carried out the protocol.
• Factors leading to the jaguar's recapture on March 2, the recapture itself and its propriety.
• Macho B's health before its euthanization and whether the animal should have gotten more time before being euthanized.
• Why a more thorough autopsy was not performed, instead of what was called a cosmetic necropsy that was designed to preserve the jaguar's hide so it could be used for scientific, educational or religious purposes.
• The Fish and Wildlife Service's involvement in decision-making in the capture and death.

Viramontes would not comment on what items will be covered in the federal investigation.

The service's entry into this case came two days after Game and Fish announced it was investigating Macho B's capture — also based on unstated "new information."

On Thursday, the state agency said it welcomes the federal investigation and will fully cooperate with it. On Wednesday, Game and Fish said the state investigation would be led by the Arizona Attorney General's office. The service said Thursday that it would investigate in concert with the Attorney General.

"We will not speculate on its outcome," Game and Fish said in a statement. "In the event this investigation reveals any inappropriate conduct or actions, the Arizona Game and Fish Commission and department will take appropriate measures. The Department and commission did not authorize or condone the intentional initial capture of this jaguar."

In an interview, Brun was pleased at the service's decision to investigate.

"I think that there is responsibility that needs to be taken for mistakes that were made, if any were made. I think there was a lot that seems to have been left out and a lot that wasn't done by the book. I think it is fantastic that they are investigating so hopefully something like this won't happen again," said Brun, an Arivaca resident who is out of state on family matters.

Bob Hernbrode, the Tucsonan who chairs the Game and Fish Commission, declined to comment in detail because of the ongoing investigations.

"I'm not going to make any judgments till we hear from the investigation," he said.

He noted that he initially defended the commission at a press briefing held by state and federal officials in Tucson, three days after the jaguar's death. But that was before information emerged suggesting the capture of the jaguar was intentional.

"This stuff is as painful to me as it is to anyone. I guarantee you we will follow through whatever happens."

Contact reporters Tony Davis at 806-7746 or and Tim Steller at 807-8427 or

Saturday, April 4, 2009

Judge sides with environmentalists in wolf case

A lawsuit is still alive, challenging the way the U.S. Fish and Wildlife Service is managing a reintroduction program aimed at returning the endangered Mexican gray wolf to the Southwest.

A federal judge rejected a motion by the federal agency to throw out the case, which was filed nearly a year ago by several conservation organizations that have concerns about certain rules governing the reintroduction effort.

"The important thing to us is now that the case is not being dismissed it means we do have a valid argument and it will be heard and hopefully it will give Mexican wolves a chance to recover," Eva Sargent, director of Defenders of Wildlife's Southwest program, said Thursday.

A Fish and Wildlife Service spokesman said Thursday the agency has reviewed the ruling issued this week by U.S. District Judge David Bury in Tucson, Ariz. The agency plans to argue the merits of its actions related to the wolf program.

The Mexican wolf, a subspecies of the gray wolf, was exterminated in the wild in the Southwest by the 1930s. In 1998, the government began reintroducing wolves along the Arizona-New Mexico line in a 4 million acre-plus territory interspersed with forests, private land and towns.

Biologists had hoped to have at least 100 wolves in the wild by now and 18 breeding pairs. The most recent survey shows there were 52 wolves, including two breeding pairs, scattered between New Mexico and Arizona at the end of 2008.

Defenders of Wildlife, the Center for Biological Diversity and other groups are challenging the Fish and Wildlife Service's decision to create an oversight committee to manage reintroduction efforts.

The groups claim the agency relinquished its powers to other agencies rather than maintaining final authority to recover the wolves.

The groups also are challenging a controversial rule that calls for wolves to be permanently removed from the wild or killed if they prey on livestock three or more times within one year.

The agency did not remove any wolves in 2008 due to depredation, but it has said illegal killings were what hampered the species' recovery over the last year. Five wolves were illegally shot and two others suffered a "suspicious demise."

However, environmentalists accuse the agency of deflecting blame from its own management.

The Center for Biological Diversity points out that the agency removed 19 wolves from the wild in 2007 through trapping and shooting. That's nearly three times the number of suspicious wolf deaths in 2008.

Michael Robinson of the Center for Biological Diversity said the pending lawsuit seeks to rescind the three-strikes rule and restore authority from the Adaptive Management Oversight Committee to the Fish and Wildlife Service.

If the groups get their way, Robinson said: "At least the Fish and Wildlife Service wouldn't be able to hide behind other agencies in shirking their responsibilities. The decision would be right back in their corner and they would be held accountable on the basis of how well they perform."

The plaintiffs in the case include Defenders of Wildlife, Center for Biological Diversity, Western Watersheds Project, New Mexico Audubon Council, New Mexico Wilderness Alliance, University of New Mexico Wilderness Alliance, The Wildlands Project, Sierra Club, Southwest Environmental Center, Grand Canyon Wildlands Council, WildEarth Guardians and The Rewilding Institute.

Thursday, April 2, 2009

The Curious Case Of Jaguar Macho B

By David Alire Garcia

Fights over endangered species are nothing new in New Mexico. But one over the officially endangered jaguar — the Americas’ biggest big cat — now that’s new.

Over the last several days next door in Arizona, a drama has played out over a jaguar dubbed Macho B.

Environmentalists are demanding an investigation into the Arizona Game and Fish Department’s decision to put the big cat down last month — a demand bolstered by a story in yesterday’s Los Angeles Times that quotes the University of Arizona veterinary diagnostic laboratory pathologist who conducted the necropsy on the animal.

Arizona officials had said the approximately 15-year-old Macho B had terminal kidney failure, but that’s not what Sharon Dial told the L.A. Times:

“Nothing is absolute,” Dial said. “There is nothing to say that he absolutely would have recovered, but I can say by looking at the kidneys that there is no structural reason why he would not have.

“I’ve looked at a lot of cat kidneys, not jaguar kidneys,” Dial added. “For a supposed 15-year-old cat, he had damned good-looking kidneys.”

In turn, Arizona officials blasted Dial’s comments as “outrageous, unprofessional and speculative.”

Macho B was known to Arizona Game and Fish officials for years from the recordings of trail cameras used to conduct research south of Tuscon. There have only been a few reports of jaguars venturing into southeastern Arizona and southwestern New Mexico over the past several decades. In fact, Macho B may have been the only jaguar to venture this far north in recent times.

On a Web site devoted to the saga of Macho B, Arizona Game and Fish Department officials have said they opted to put Macho B down to “end his suffering.”

Macho B was captured on Feb. 18 south of Tuscon by accident — in the course of a black bear and mountain lion research study. The rarest of “incidental” captures, the animal was then fitted with a satellite tracking collar and released. As you might imagine, such captures can prove to be awfully stressful. And in fact, subsequent monitoring seemed to indicate Macho B wasn’t well. So the Arizona officials decided to recapture the animal and send it to the Phoenix Zoo for more tests. The state agency concluded the following:

Through blood tests and physical exam, zoo veterinarians found the cat was suffering from severe and unrecoverable kidney failure.

I imagine that initial conclusion will be heavily scrutinized in the days and weeks to come.

Meanwhile, the Center for Biological Diversity — no stranger to New Mexico’s endangered species wars — is calling for a federal investigation. Due to the fact that it was state officials who decided to capture and then euthanize the jaguar, the center argues that Arizona officials shouldn’t be allowed to investigate themselves.

The center further argues that the feds need to come up with a plan to “start the long, hard work of restoring the U.S. jaguar population.”

That’s from a news release sent out by the center March 31 — and it’s a line that makes me wonder.

While it’s true that a federal judge ruled on Tuesday (pdf) that the U.S. Fish and Wildlife Service under the Bush administration was wrong to refuse to develop a recovery plan for jaguars, I can only imagine how contentious such a plan might be.

Think about it this way: If southern New Mexico ranchers are up in arms about the presence of critically endangered Mexican gray wolves — animals about the size of a medium dog — freely roaming the land, how will they react to the news a predator that can grow as large as 350 pounds might be coming next?

The Center for Biological Diversity points out that the historic range of the jaguar “stretched from San Francisco Bay to the Appalachians,” even though most probably think of jaguars as the majestic tree-scaling big cats of Mexico and Central and South America. Not the United States of America.

Jaguars have a special place in ancient Mexican history, in which both the Maya and Aztecs venerated the animal as a symbol of regal authority and raw power.

The unfortunate Macho B may well remain a symbol of government power — the power to capture and kill, and maybe, the power to also bring the species back.